General terms and conditions
1. Scope of application
The present provisions apply to all agreements concluded between HeronTrack S.R.L., BCE BE0721.456.997, RPM Charleroi, B-6000 Charleroi, Square des Martyrs 1/1 (hereinafter referred to as "HeronTrack") and its customers (hereinafter referred to as the "Customer" or "User") concerning the products and services provided by HeronTrack, as well as generally to all their business relations. Where applicable, they are supplemented by special conditions.
These provisions may only be modified by express written agreement. They are deemed to have been accepted by the Customer by the mere fact of placing an order, automatically overriding any general or special terms and conditions of the Customer. The latter are only binding on HeronTrack if they have been expressly accepted in writing by HeronTrack, and HeronTrack's tacit agreement cannot be presumed under any circumstances. Prior to placing an order, the Customer shall obtain all necessary advice and shall ensure that the Software, Hardware and/or Services it intends to order correspond to its needs and intended use. HeronTrack assumes no responsibility for any error in the Customer's choice or assessment and/or for the suitability of the Software, Hardware and/or Services for the purpose(s) pursued by the Customer.
Depending on the Customer's order, the provisions of the contract cover the licensing of the Software (b.), the supply of Hardware related to said licensing (c.) and/or the Services provided by HeronTrack (d.). Parts (a.) and (e.) include introductory and common provisions that apply in all cases. The headings and subdivisions herein are for convenience only.
2. Definitions
For the purposes hereof, the following definitions shall apply:
- Software: the HeronTrack software consists of various components (HeronTrack web and mobile), all rights to which, including copyright, are the exclusive property of HeronTrack, as well as other components developed by third parties (e.g. map data).
- Publisher or Producer of the Software: HeronTrack and/or its assignee(s).
- Reseller: the reseller, supplier of the Software and/or Hardware.
- User: the user of the Software who, by using the Software, confirms acceptance of the terms of the User License Agreement.
- Contract: the contract (i) for the license of the Software, (ii) for the supply of Hardware and/or (iii) for the supply of Services.
- Working day: weekdays, except Saturdays, Sundays and Belgian public holidays.
- Hardware : thehardware, electrical or other equipment acquired by the Customer from HeronTrack as part of the Contract (e.g. sensor (tag), connectors, etc.).
- Services: the many and varied services provided by HeronTrack, such as project consultancy, software maintenance, training, remote support, etc.
3. Control
All customer orders are binding on the customer. The customer's employees, sales representatives or intermediaries are irrevocably presumed to have the powers required to bind the customer. Any order for which the invoice is sent to a third party to the ordering party, makes the ordering party and the third party jointly and severally liable for the performance of all obligations.
HeronTrack's employees, sales representatives, agents and intermediaries have no authority to bind HeronTrack, except in the event of written ratification by a director or manager duly authorized for this purpose or commencement of delivery or service by HeronTrack. HeronTrack reserves the right either to renounce an order which has not been the subject of such ratification, or to ratify it at any time.
Software license
1. Purpose
By using all or part of the Software, the User agrees to comply with the terms of the Agreement. Clicking on the "I accept" button when installing and/or downloading any Software, update, upgrade or supplement constitutes use of the Software. The Publisher grants the User, who accepts it, a license(s) to use the Software, in accordance with the terms of the Contract and the legal provisions in force.
2. Subscription
The Software is offered on a subscription basis, unless otherwise agreed (e.g. sale), in which case the present provisions apply mutatis mutandis. Fees for use of the Software are payable on a monthly, quarterly or annual basis. The subscription starts when the Reseller or HeronTrack gives the User the activation codes for downloading the Licenses. The first invoice is sent to the User together with the activation codes, or immediately after delivery. In the 3rd month after the first invoice 50% of the licenses will be invoiced as subscription and after the 6th month 100% of the licenses. HeronTrack considers that the Customer will have installed 100% of the effective after 6 months from the order date.
3. Ownership of rights
Unless explicitly stipulated otherwise in the Agreement, the Publisher remains the owner of all rights of ownership and/or use in the broadest sense, relating to the Software and any existing copies, in particular those arising from the copyright on the Software and the sui generis right attributed to the producer of databases. The Publisher authorizes the User to use the Software only in accordance with the terms of the Agreement. Any rights not specifically granted by the Contract are reserved to the Publisher. However, the User is authorized (a) to make one copy of the Software for backup and archival purposes only, or (b) to transfer the Software onto a single medium, provided that the original is retained for backup or archival purposes only. The User is prohibited from copying the Software manual(s), as well as any printed media accompanying the Software, except for personal and limited use.
The User only becomes the owner of the data carrier, if any, without acquiring any ownership rights to the Software.
4. Prohibitions and responsibilities of the Customer
The Customer is strictly prohibited from selling, renting, lending or making available to third parties, including HeronTrack's competitors, by any means whatsoever (e.g. electronically, through online services or by online transmission), the Software, whether in return for payment or free of charge, whether for profit or not, and/or from contributing to such actions. Reverse engineering, disassembly, decompilation or similar techniques are expressly prohibited. In no event shall HeronTrack and/or its suppliers be liable for any loss or damage caused by any act of reverse engineering, disassembly, decompilation or similar techniques.
5. Personal nature of the User license
The User's rights and obligations under this contract are not transferable.
6. Responsibility of the Publisher/Reseller
Neither the Publisher nor its Resellers may be held liable (whether on a contractual, quasi-delictual or other basis):
(i) for any inability to use third party equipment or access data, loss or corruption of data, loss of business, profits, anticipated sales or savings, business interruption (whether such damages are direct or indirect);
(ii) for any indirect, incidental or consequential damages or losses whatsoever arising out of the use or inability to use the Software, including in cases where the Publisher or Reseller has been advised of the possibility of such damages or losses.
Neither the Publisher nor its Resellers can be held responsible for the installation of the Software.
7. Data retention and privacy
Data is kept online for a period of three months on the Publisher's servers, unless expressly agreed otherwise. The User is responsible for storing data for longer periods. To this end, he/she is invited to regularly back up the data on the basis of the reports made available to him/her.
The data generated by the use of the Software according to the Customer's instructions, temporarily stored by the Publisher, are the exclusive property of the Customer, who remains fully and solely responsible for them, particularly with regard to the protection of privacy and any possible exploitation of the data generated.
8. Limited warranty
The Publisher cannot guarantee error-free operation of the Software. The User is advised that calculation errors may occur in the use of the Software, e.g. due to local conditions and/or incomplete or not taken into account data. Any defects not known to HeronTrack which may affect the Software are not covered by the warranty. The Customer undertakes to maintain the Software delivered at the best revision level, the cost of acquiring new versions being borne by the Customer unless otherwise stipulated.
To the maximum extent permitted by applicable law, the Publisher and its Resellers offer the Software EN AS IS WITH ALL FAULTS and hereby disclaim all other express, implied or statutory warranties or conditions, including without limitation, implied warranties (if any), obligations or conditions of satisfactory quality, fitness for a particular purpose, reliability or availability, accuracy or completeness of answers, results, professional efforts, freedom from viruses and freedom from negligence for the Software, and the provision or failure to provide support or other services, information, software and content associated with the Software, or resulting from the use of the Software. The Software is not covered by any warranty or condition of quiet enjoyment, quiet possession, exclusivity with respect to a Customer or non-infringement.
9. Duration and termination of the license
Each license is concluded for a period of 2 years. Either party may terminate the Agreement at the end of the initial term by giving three months' notice by registered mail. In the absence of notice in the above-mentioned form, the Software license will be automatically extended at the end of the contractual term, for a further period of one year, successively.
The Publisher may terminate the Contract without prior formal notice or judicial intervention, if it finds that the User has carried out operations in breach of articles 6, 7 and/or 8 above, without prejudice to the Publisher's right to claim damages.
The right to use the Software automatically terminates upon expiry of the License. The User may not claim any compensation from the Publisher for the termination of this Agreement, for any reason whatsoever.
10. Permanent cessation of operations
The User may not claim any compensation from the Publisher for the temporary or permanent cessation, for any reason whatsoever, of use of the Software.
Equipment supply
1. Equipment delivery
HeronTrack is only obliged to deliver the Hardware explicitly specified in the order confirmation or the signed Contract.
Unless expressly agreed otherwise in writing, delivery times are given as an indication only. A delay in delivery or service cannot give rise to cancellation of an order or to compensation, except in the case of wilful misconduct on the part of HeronTrack. HeronTrack reserves the right to make partial deliveries which constitute partial sales. Under no circumstances may such partial deliveries justify a refusal to pay for the products delivered. If circumstances make it impossible to carry out the delivery - in particular in all cases of force majeure such as strikes, lock-outs, accidents, bad weather, blockades, import or export prohibitions, cessation of production or delivery by the manufacturer, etc. - HeronTrack reserves the right to refuse payment for the products delivered. -HeronTrack reserves the right to deliver products equivalent to those specified in the order, or to terminate its commitments to the customer, all without compensation. Unless expressly stated to the contrary, the cost of delivery, collection and return of the installed Hardware shall be borne by the User.
2. Hardware installation
The physical installation of the Hardware (e.g. in a tool) is carried out by a service provider independent of HeronTrack. Installation is scheduled to take place at the User's head office, in groups of at least 20 tools, during working days and hours. It will be organized in collaboration with the User within 10 working days of receipt of the deposit payment. Installation of the equipment transfers risk.
3. Acceptance of Material
If the delivered and/or installed Hardware is damaged or incomplete, in the event of an error or any other non-conformity, the Customer is obliged to refuse the Hardware or to accept it only subject to a written reservation. Any complaint relating to the Hardware delivered must reach HeronTrack in writing within five working days of receipt of the Hardware, referring to the number on the dispatch note. On expiry of this period, the Hardware will be deemed definitively approved by the Customer and no complaint will be taken into consideration. No returns will be accepted without the prior written consent of HeronTrack. Only products in good condition may be returned.
4. Warranty on the Equipment sold
Unless otherwise agreed, the warranty relating to the Equipment sold is limited to that granted by the manufacturer, which is well known to the Customer or about which the Customer is presumed to have been fully informed before entering into the Contract, and, where applicable, to the warranty extension program agreed by special agreement.
Unless otherwise specified, all sensors (tags) are guaranteed for a period of one year from the date of first installation. The warranty is limited in all cases to the repair or outright exchange of defective products - the choice between repair and exchange being at HeronTrack's sole discretion - to the express exclusion of any compensation whatsoever to the Customer or third parties, except in the case of wilful misconduct on the part of HeronTrack. Installation labor and travel expenses related to warranty interventions for the sensor are included, if the initial installation was performed by HeronTrack or its independent service provider. Any repair or exchange will be made at the original place of installation.
In particular, the warranty does not cover the following cases:
(i) damage resulting from accident, theft, vandalism, fire, lightning, frost, excess cold, external heat or humidity, immersion or prolonged immobilization of the Equipment which would not correspond to its normal use,
(ii) the inadequacy or failure of the hardware, software, telecom or electrical environment, etc,
(iii) Equipment that may be connected to the tool's power supply, changes to the installation environment, such as surges due to tool battery recharging, sensor opening, fuse failure, etc..,
(iv) maintenance of the Equipment, normal wear and tear or any replacement of parts scheduled by the manufacturer and treated as maintenance,
(v) the addition or connection of complementary hardware or software not included in the Contract,
(vi) modification of the delivered products (e.g. opening the sensor) without the prior written consent of HeronTrack,
(vii) any damage resulting from the use of energy, use or installation which does not comply with the manufacturer's instructions,
(viii) an intentional or negligent act by the User or a third party (e.g. a member of the Customer's staff),
(ix) failures resulting from a virus or any other pre-programmed device having a similar effect.
When no defect, anomaly or malfunction of the device has been detected, or when the intervention is not covered by the warranty, the customer will be billed for the full cost of the intervention.
The granting of the warranty assumes that the products have been used with due care, in accordance with the conditions of the offer or under the normal conditions of use mentioned in the catalogs, manuals, etc. made available to the Customer. In case of doubt, it is up to the User to demonstrate that the Hardware has been used with due care and attention in order to activate the warranty. The warranty automatically lapses in the event of modification of the initial installation or its components by any person not authorized by HeronTrack.
5. Liability
HeronTrack cannot be held responsible for incidental damage related to the installation and use of the Hardware (battery discharges, electrical interference, etc.).
6. Reservation of ownership
All Material delivered remains the property of HeronTrack until payment in full of the principal amount and all accessories. As long as the aforementioned payment has not been made in full, the Customer expressly refrains from disposing of the Equipment delivered, and in particular from transferring ownership, pledging it or assigning it to any security or lien whatsoever. Insofar as necessary, the above clause is deemed to be reiterated prior to each delivery. The Customer also undertakes to inform HeronTrack without delay by registered letter of any seizure by a third party.
Services
1. Purpose and duration
Any order placed with HeronTrack for the provision of Services generates only obligations of means on its part, to the express exclusion of any obligation of result.
The duration of Service contracts is specified in the special conditions. In the absence of notice sent by registered mail within the period specified in the special terms and conditions, or in the absence of three months' notice prior to expiry, fixed-term contracts are tacitly renewed for periods of one year.
2. Claim
HeronTrack must be notified in writing of any complaints relating to the services provided within five working days of the date of the service. On expiry of this period, the service will be deemed to have been definitively approved by the customer, and no further complaints will be taken into consideration.
Common provisions
1. Awards
The prices indicated on HeronTrack's price lists and offers are purely indicative and may be modified at any time. In the event of an increase in the price of the Material delivered or of the services provided by a third party after the conclusion of the contract, HeronTrack has the right to pass on this increase to the Customer by registered letter. This pass-on will be presumed accepted by the Customer five working days after dispatch of the notification, unless contested within this period by registered letter. In the absence of agreement by the Customer, HeronTrack has the right to unilaterally renounce the Contract, by registered letter and without indemnity.
All prices are net ex-works HeronTrack head office, excluding taxes and charges. The Material travels at the Customer's risk, even in the case of sale or delivery carriage paid.
Advance payments made by the customer are to be applied to the price of the order. They constitute the beginning of the execution of the contract and not a deposit, the abandonment of which would authorize the Customer to release himself from his obligations.
2. Terms of payment
All HeronTrack invoices are payable in cash, net and without discount, at HeronTrack's registered office, subject to other payment terms detailed on a case-by-case basis in any invoice.
In the event of non-payment of all or part of an invoice, interest of 12% p.a. will be added to the outstanding amount ipso jure and without notice of default, and any month already started will be payable. In addition, any invoice unpaid on its due date will be subject, ipso jure and without notice, to an irreducible flat-rate penalty of 15%, with a minimum of 125 EUR. Finally, failure to pay an invoice by the due date, the protest of an unaccepted bill of exchange, or any other event that may imply the customer's insolvency, shall automatically and without formal notice result in the forfeiture of all outstanding invoices. In addition, these situations give HeronTrack the right to suspend all its obligations without prior formality and to terminate all or part of current contracts without any other formality than notification by registered mail and without compensation.
Any complaint relating to an invoice must be sent by registered mail within five working days of its receipt, which is presumed to have taken place within three working days of the invoice date. Once this period has expired, no further claims will be accepted. Under no circumstances may a complaint justify suspension of payment. The right of cancellation under article 1794 of the French Civil Code is not applicable.
3. General limitation of liability
To the fullest extent permitted by applicable law, and except in cases of gross negligence or wilful misconduct, the total liability of HeronTrack and its Resellers arising out of this Agreement is expressly limited to the price actually paid by the Customer, where applicable calculated over a full year. This limitation of liability, which is an essential condition of HeronTrack's engagement, applies regardless of whether the acts or negligence are the fault of HeronTrack or its subcontractors, regardless of the applicable liability regime including, but not limited to, contractual liability, quasi-delictual liability, no-fault liability, product liability, liability for latent defects, etc. HeronTrack shall not be liable for any loss or damage arising out of or in connection with this Agreement.
4. Indemnification of HeronTrack
All Customers undertake to guarantee and indemnify HeronTrack, its representatives, employees, partners, and/or any third parties, against any damage, complaint or demand emanating from third parties following the use of the Software, Hardware and/or Services. This guarantee covers any compensation that may be due as well as legal costs within reasonable limits.
5. Miscellaneous
For the entire duration of any contract and for a period of six months following its expiry, the Customer shall refrain from (attempting to) directly or indirectly hire any HeronTrack employee, on pain of irreducible damages of EUR 30,000 per employee concerned, without prejudice to compensation for greater loss, if any.
The fact that one of the parties has not invoked a specific right or has temporarily not exercised a right does not imply waiver of that right.
The invalidity of any clause or part of a clause in these conditions shall not affect the other clauses or parts of clauses and the clause or part of clause concerned shall be replaced as far as possible by a valid provision of equivalent economic effect.
The appendices attached to this Contract form an integral part of it.
6. Applicable law - Competent court
This Agreement, and any dispute arising out of this Agreement, shall be settled by mediation. Failing agreement between the Parties within ten (10) days of the start of mediation, the dispute shall be submitted to the courts of Charleroi, which shall have exclusive jurisdiction to hear such disputes.